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Congratulations to Jessica L. Roberts (J.D. Yale 2006, B.A. University of Southern California 2002), who will begin as an Assistant Professor of Law at the University of Houston Law Center in Fall 2010. Prior to joining the UH faculty, Prof. Roberts was an Associate-in-Law at Columbia Law School and an Adjunct Professor of Disability Studies at the City University of New York. Immediately after law school, she clerked for the Honorable Dale Wainwright of the Texas Supreme Court and the Honorable Roger L. Gregory of the Fourth Circuit Court of Appeals. Prof. Roberts’ research currently focuses on the Genetic Information Nondiscrimination Act (GINA) and the antidiscrimination protection of genetic information. Her most recent article, Preempting Discrimination: Lessons from the Genetic Information Nondiscrimination Act, is forthcoming in the Vanderbilt Law Review in March 2010. Her previous work has appeared in the University of Colorado Law Review, the National Black Law Journal, the Yale Journal of Law and Feminism, the Virginia Journal of Social Policy and the Law, and the Texas Journal on Civil Rights and Civil Liberties. Prof. Roberts will teach Health Law and Disability Law.

Is it legal for your boss to fire you for what you write on your personal blog? Or for putting the “wrong” candidate’s bumper sticker on your car? Or for having a high risk of a future disease? Shockingly, all of these are allowed—and really happen, everyday, in America. Lew Maltby of the National Workrights Institute shares true stories of employees who have been fired or harassed unfairly — but legally. For instance, he exposes bosses who:

.

Place hidden cameras in restrooms

Fire employees for their political orientations

Track employees through cell phone GPS locators

Fire people for social drinking after work

Require applicants to provide outrageous details on their religious beliefs and sex lives

The December employment figures are now in from the Department of Labor and things took a bit of a dip. The unemployment rate is holding steady at 10%, after a 85,000 job loss last month. Interestingly, November's figures were adjusted to reflect an actual increase in jobs (although it's a small one a 4,000, but still better than the initially reported 11,000 job loss). As the New York Times reports, December's numbers were worse than expected, but still reflected an uptick in temporary workers, which is a good thing:

[December's data] disappointed economists who had generally been expecting a decline of
perhaps 10,000 jobs. The report broadly confirmed that while the pace of job market
deterioration has declined markedly in recent months, companies remain
reluctant to hire, heightening the likelihood that scarce paychecks
will remain a dominant feature of American life for many months. . . .

Some economists fixed on a potentially positive trend tucked within
the data: For a fifth consecutive month, temporary help services
expanded, adding 47,000 positions in December. The increase burnished
the notion that companies are recognizing fresh opportunities and are
inclined to add labor, even as they hold off on hiring full-time
workers. . . .

For those out of work, the market is bleaker than ever. Unemployed
people had been jobless for an average of 29 weeks in December, the
longest duration since the government began tracking such data in 1948.
Roughly 4 in 10 unemployed workers had been jobless for six months or
longer. In recent weeks, the number of new claims for unemployment insurance
benefits has tailed off sharply. But the persistence of double-digit
unemployment underscored that companies remain unwilling to add payroll. . . .

Amid the usual parsing of data that accompanies the monthly jobs
report, the spinning of forecasts and dueling outlooks, no complexity
cloaked the simple fact that employment remains scarce. Experts assume
the economy needs to add about 100,000 jobs a month just to keep pace
with new people entering the work force.

As the article notes, things seem to be bumping up against the bottom, but it's not going to be a quick rise back up.

Electronic Health Record (EHR) systems may soon become a fixture in most medical settings. President Obama’s 2009 stimulus legislation includes $19 billion to promote their implementation. The sophisticated features and efficiencies of EHR systems have the potential to improve health outcomes and enhance patient welfare considerably. However, this emerging technology also poses significant challenges and risks, not the least of which are its workplace impacts. This article provides a first of its kind analysis of the ramifications of EHR systems for workers and employers.

The potential effects of health information computerization on the workplace are numerous. Employers may obtain and process EHRs for purposes of fitness for duty determinations, reasonable accommodations, workers’ compensation, and payment of medical claims. Digitized records could enable employers to obtain unprecedented amounts of information in response to lawful requests and thus intensify workers’ concerns about privacy and discrimination. At the same time, employers may find EHRs to be cumbersome and difficult to interpret and, if they store health information electronically, may worry about security breaches. EHR systems could also affect employers’ insurance costs, impact discovery in litigation, and profoundly affect the work habits of health care providers. This article argues that these concerns can best be addressed by specific changes to the ADA, the HIPAA Privacy and Security Rules, and parallel state laws as well as by technological advances and appropriate federal oversight. As the country transitions to computerization in the medical field, proactive steps must be taken to protect stakeholders in all settings, including the American workplace.

Two recent discrimination law reforms represent a significant strengthening of human rights in Australia, particularly for persons with disability, bringing the right to equality in from the cold and more squarely into the industrial realm where workplace terms and conditions are determined and regulated. The Fair Work Act 2009 (Cth), replacing the Workplace Relations Act 1996 (Cth), introduces new discrimination provisions that may expand anti-discrimination rights and, at the very least, brings the Fair Work Ombudsman’s powers and resources to the enforcement of anti-discrimination rights in work. This reflects a major regulatory shift that has both symbolic and instrumental potential to promote equality as an employment right not merely a moral claim.

The Disability Discrimination and Other Human Rights Legislation Act 2009 (Cth) amended the Disability Discrimination Act 1992 (Cth) and other Acts. Most fundamentally, the DDA changes make express that employers (and other duty holders) have an obligation to provide ‘reasonable adjustments’ to enable the equal economic and social participation of persons with disability.

After briefly identifying regulatory weaknesses of Australian anti-discrimination laws to date, I outline the new provisions and analyse how they might operate. These changes provide new rights and enforcement means for victims of discrimination but with some outstanding questions and issues.

This Paper is the second part of a project aimed at ending caregiver discrimination for all workers who are struggling to balance work and family. In the first part of the project, I argued that the communitarian theory supports the broad reform I envisioned, and in this piece, I articulate that vision. This reform project utilizes a synergy of solutions, taking a comprehensive and creative approach to ending the caregiver conundrum for all working caregivers. My proposal includes the use of various statutory provisions that will work together in a unique way, avoiding some of the deficiencies created by other proposals. Specifically, my proposal attempts to address the three main problems facing working caregivers: the lack of workplace flexibility, the marginalization of part-time workers, and the unique financial difficulties facing lower income workers. While describing my synergistic solutions, the Paper will also explain how the proposed reform differs from other reform proposals and why I have chosen to advocate for some solutions over others. I will also discuss why I believe the communitarian theory helps to justify the reform I am proposing. While recognizing that this proposal is ambitious, I hope to convince the reader that a synergy of solutions is not only possible but necessary to cure the caregiver conundrum for all working caregivers.

Marty Katz (Denver) has posted on SSRN his new piece in the Penn State Law Review: Gross Disunity.

Here is the abstract:

In the recent case of Gross v. FBL Financial Services, the Court addressed what it means to say that an employee was demoted “because of” his age. Perhaps more importantly, it addressed the question of whether “because of” has the same meaning in age discrimination cases as it does in cases involving other types of discrimination, such as race or sex discrimination. For many years, the Court had espoused uniformity, suggesting that the phrase “because of” should have the same meaning in all anti-discrimination statutes. But in Gross, the Court rejected this ideal of uniformity, holding that “because of” means one thing for race discrimination plaintiffs, and something else (something less favorable) for age discrimination plaintiffs.

This essay critiques Gross’s rejection of uniformity on four grounds. First, it argues that the ideal of uniformity makes good sense, both as a practical matter and as an understanding of Congressional intent; yet, Gross rejected this ideal without a good explanation. Second, itargues that the timing of the Court’s about-face on uniformity is suspect; that it may suggest a Court that is recalcitrant after having been rebuked by Congress or resistant to Congress’s new definition of “because of.” Third, it argues that the Court’s about-face on uniformity almost certainly reflects a problematic resistance to burden-shifting in anti-discrimination cases. And fourth, it argues that the definition of “because of” adopted by the Court in Gross is normatively flawed, both in its rejection of burden-shifting and in its embrace of a but-for standard of causation for liability. Accordingly, this essay ends with a call for legislative action, not just over-ruling Gross, but unifying disparate treatment law around a good definition of “because of.”

I agree with Marty 100% (as I usually do) on his thesis and here's hoping that Congress acts quickly to overturn this gross, dysfunctional case.

The Equal Employment Opportunity Commission released its enforcement statistics for fiscal year 2009. It probably won't surprise many, but charges were high last year at 93, 277 total charges filed with the EEOC. That's actually slightly down from FY '08's high of 95,402. From the press release,

The FY 2009 data show that private sector job bias charges (which
include those filed against state and local governments) alleging
discrimination based on disability, religion and/or national origin hit
record highs. The number of charges alleging age-based discrimination
reached the second-highest level ever. Continuing a decade-long trend,
the most frequently filed charges with the EEOC in FY 2009 were charges
alleging discrimination based on race (36%), retaliation (36%), and
sex-based discrimination (30%). Multiple types of discrimination may be
alleged in a single charge filing.

The near-historic level of total discrimination charge filings may be
due to multiple factors, including greater accessibility of the EEOC to
the public, economic conditions, increased diversity and demographic
shifts in the labor force, employees’ greater awareness of their rights
under the law, and changes to the agency’s intake practices that cut
down on the steps needed for an individual to file a charge.

The FY 2009 data also show that the EEOC resolved 85,980 private sector
charges. In FY 2009, the Commission resolved more charges than ever
alleging unlawful harassment, as well as allegations under Title VII of
the Civil Rights Act. In FY 2009, the EEOC recovered a record high of
$294 million through administrative enforcement and mediation. Further,
the productivity of EEOC investigators increased in FY 2009. The EEOC
resolved the second highest number of charges per available
investigator in the past 20 years.

The Commission also filed 281 new “merits” lawsuits and resolved 321
merits lawsuits in FY 2009 (merits suits include direct suits and
interventions alleging violations of the substantive provisions of the
statutes enforced by the Commission and suits to enforce administrative
settlements).

Through its combined enforcement, mediation and litigation programs,
the EEOC recovered more than $376 million in monetary relief for
thousands of discrimination victims, and obtained significant remedial
relief benefiting millions of workers across the country (e.g., court
decrees or settlements requiring employers to change discriminatory
policies or practices).

The benchmarks the EEOC has started to use to measure effectiveness--amount of relief and number of workers benefited--are better than what used to be their primary measure--charges processed. Still, I'm looking forward to (at some point) even better measures of the agency's effectiveness in eliminating discrimination, measures the EEOC has been working to develop for several years now.

If you are in New Orleans at the AALS and still checking this blog once in while, Mike Selmi (George Washington) would like you to know that there will be a Hot Topics Panel on Ricci that will be held on Friday at 4:15 at the conference.

Fresh on the heels of the California furlough decision, there is now a new case out of Pennsylvania only a slightly different furlough issue. In the PA case, the governor had argued that he could not just use any funds to pay public employees and therefore, was force to furlough them during a budget shortfall.

In Majeski v. Metropolitan Life Insurance Co., No. 09-1930 (7th Cir. Dec. 29, 2009), the plaintiff, Kirsten Majeski, had been employed by Metropolitan Life Insurance Company ("MetLife"), and had participated in MetLife's Short Term Disability Plan (the "Plan"). The case centers on the decision of MetLife, as plan administrator, to reject Majeski's claim for short-term disability benefits, after determining that Majeski had failed to submit enough evidence to support her claim. The district court had likewise rejected Majeski's claim for the benefits and had granted summary judgment against her.

The Court applied a deferential review to Metlife's decision to deny Majeski's claim for benefits, since the Plan granted discretionary authority to Metlife, as plan administrator, to determine a participant's entitlement to benefits. However, the Court found it troubling that one doctor's report--the sole basis for MetLife's decision to deny the claim--concludes, erroneously, that Majeski did not submit objective evidence of functional limitations that were the source of her disability. This doctor did not acknowledge or analyze the significant evidence that Majeski did offer on that matter. The Court felt that these omissions made Metlife's claim denial arbitrary and capricious, and said that a plan administrator's claims procedure is not reasonable if the plan administrator's determination of a benefit claim ignores, without explanation, substantial evidence that the plaintiff submitted on the central issue-here, Majeski's functional limitations.

Now as anyone who litigates these ERISA denial of benefit claims can tell you, this is hardly the end of the case. This is because the case will now be turned over again to Metlife to review the plaintiff's claim for short-term disability benefits, and even though it will now take into account the evidence offered, Metlife could still decide to deny the claim. And the claim could again find itself in court.

I am of the opinion, as I have argued elsewhere, that once the plan administrator is found in violation of the ERISA standard under Firestone and Glenn, the plan administrator should not get another bite of the apple and the court should be able to award a remedy to plaintiff.

In any event, kudos to friend of the blog, Mark DeBofsky, for successfully arguing this case in front of the Seventh Circuit.

The Americas conference for the International Society for Labour and Social Security Law will be held in Cartagena Columbia May 25-28, 2010. The topic is the current situation and the future of public and private pension systems in the light of the worldwide crisis. If you're going, post a comment or drop me an email.

As we posted previously, Oregon became the first state to enact so-called Worker Freedom legislation that prohibits employers from holding mandatory, captive audience meetings during union organizational campaigns.

The Des Moines Register has been doing a series on the Disabled Worker Exemption to the Fair Labor Standards Act. This exemption allows employers to get a certificate from the Department of Labor's Wage and Hour Division to pay less than the minimum wage to certain workers with disabilities. The exemption was designed as a way to promote the employment of people with disabilities, but it is (perhaps not surprisingly) rather controversial, as this story notes, particularly when some workers are paid as little as $0.11 per hour.

The issue came to the forefront in Iowa when a bunkhouse for workers at a turkey processing plant was closed down last Spring. That bunkhouse had, for over 30 years, housed up to thirty-seven mentally retarded workers who were paid $65 per month regardless of the number of hours they worked. According to the Register, the company

retained most of the wages earned by the men, treating it as
payment for room and board in the 106-year-old converted school
building that served as the bunkhouse. In recent years, the building
was marked by boarded-up windows, a recurring roach infestation and a
lack of central heating.

There were also allegations of neglect and physical abuse of the workers.

The
building was closed by the state fire marshal on Feb. 7, a few days
after The Des Moines Register asked state regulators why the 21
mentally retarded laborers were living in what appeared to be an
unlicensed care facility. State health investigators later concluded
the men were dependent on others for their daily care and were not
capable of living on their own.

The company had received a waiver from the DOL in the early 2000s, but that had expired. The expiration is what allowed the Department of Labor to sue for the wage violation, but the grant of a waiver in the first place calls into question the exemption's validity.

After the Atalissa closure, Iowa's Senator Harkin, Chair of the Senate Health, Education, Labor & Pensions Committee, asked the DOL to report on its enforcement of violations of the exemption rule. The DOL has now reported that it fined 3 of the 797 violators of the exemption rule over a five year period. Fines are available for willful or repeated conduct.

The reason for this seems to be due to the quality of the cases, the nature of the employers, and the desire to focus on back wages for the workers. From the story,

Department of Labor spokesman Joseph De Wolk said that of the 797
cases described in the report to Harkin, 635 stemmed from "self audits"
by employers.

Those cases were excluded from the penalty process,
he said, because the department would have been unable to prove the
violations in court.

De Wolk said many of the violators were small, non-profit agencies for which a penalty may not have been appropriate.

The
797 cases, handled between 2003 and 2008, involved almost $5 million in
unpaid wages owed to more than 18,500 workers. All but eight of the
cases resulted in an order to pay back wages to the workers.

In the three cases that resulted in penalties, the fines totaled $8,360.

Curt
Decker of the National Disability Rights Network said the numbers
illustrate a long-standing problem with the department's inability to
effectively enforce labor laws.

"I do think that sanctions and
fines, when they're appropriately administered, send a great message to
people about abusing the law and treating certain people as having less
value than others," he said.

Over the past four years, roughly
10,000 employers asked the Department of Labor to renew the certificate
that authorized them to pay disabled workers less than the minimum
wage. Only two of those requests were denied.

In Iowa, there are 88 employers now authorized to pay less than the minimum wage. Most of them are nonprofit agencies.

"They
grant that authorization easily," Decker said, "and they don't do any
follow-up or oversight, and they don't look at the workers'
productivity to see if they're being paid a fair wage. It just seems
like a system that really is ripe for abuse."

It's an interesting series, and Senator Harkin is reported to be focused on legislation to protect these workers more effectively.

A California judge on Thursday ruled that Gov. Arnold Schwarzenegger abused his discretion in ordering furloughs of state workers, dealing a blow to the administration's efforts to cope with the state's fiscal crisis.

Alameda County Superior Court Judge Frank Roesch said the administration must halt the furloughs for workers represented by three unions, including Service Employees International Union Local 1000, which represents 95,000 state employees.

He ruled against Schwarzenegger's furlough orders on two fronts: He said the administration could not take the action against employees in so-called "special fund" agencies, or those that receive money from sources other than the state general fund. He also said Schwarzenegger had overstepped his authority by claiming the furloughs were necessary to deal with a budgetary emergency.

Just goes to show that furloughs are not always possible as a way for states to save money during budget crises or recessions, especially when there are state law budgetary issues. I would suspect that the success of this lawsuit might lead to other state employees, including academic employees at state institutions of high learning, to consider mounting similar actions in their states.

Cultural
cognition theory provides an anthropological and psychological-based
theory about how values actually influence judges. It suggests that
values act as a subconscious influence on cognition rather than as a
self-conscious motive of decision-making.

Applying these
insights to two controversial U.S Supreme Court labor and employment
decisions, this article contends that Justices in many instances are
not fighting over ideology, but rather over legally-consequential
facts. This type of disagreement is particularly prevalent in labor and
employment law cases where the factual issues that divide judges
involve significant uncertainty and turn on inconclusive evidence.

The
distinction that this article draws between ideology and cultural
cognition is critical for two independent reasons. First, the
identification of cultural worldviews as a major influence on judicial
decisionmaking assists in bringing legitimacy back to the judging
function. Second, social science research indicates that existing
techniques might be available for judges to counteract their
susceptibility to this form of biased decisionmaking.

It's a valuable contribution to the work on how cognitive science can be used to understand both how decisions get made in the workplace and also how those actions are then viewed by judges in discrimination cases.

In Ricci v. DeStefano, the Supreme Court in an opinion by Justice Kennedy ruled that, as a matter of law, the City of New Haven had committed intentional disparate treatment discrimination that violated Title VII by deciding not to use the results of a test given to promote firefighters to openings as lieutenants and captains. The decision has already drawn significant and interesting commentary. This article will principally focus on the threshold issue of disparate treatment law, on which the Court spent little time, rather than on the disparate impact issues on which the Court spent most of its opinion.

The thesis of this article is that it is possible that a conservative majority of the Supreme Court inadvertently may have opened new possibilities for civil rights advocates representing women and minority group men, the groups for whose protection antidiscrimination statutes were enacted in the first place. The obvious and powerful empathy the majority felt for the Ricci plaintiffs may have caused a majority of the Court to leap to the finding of discrimination that the result transforms disparate treatment law to now make it easier for all plaintiffs to prove their cases. In short, the Court appears to have established essentially a “color-blind” standard of disparate treatment liability for Title VII. This new standard allows a civil rights plaintiff to prove her disparate treatment case by proof that (1) the defendant knew the racial or gender consequences of its decision and (2) it then made that decision in light of that knowledge which made the decision “because of race” and (3) the plaintiff suffered an adverse employment action. Accepting that the City’s motivation for its action was to avoid disparate impact liability to minority group test takers, the fact that the City acted benevolently as to some of the members of all three racial groups affected was irrelevant to liability to one group, the Ricci plaintiffs, who were adversely affected by the decision even though the decision was in spite of their race, not because of it. Justice Kennedy recognized an exception to the Ricci “color-blind” theory when an employer takes into account the potential racial effect of an employment practice while that practice is in the design phase, before it is finalized for use.

Mike, through a series of posts on Ricci on the Concurring Opinions blog, has established himself as the go-to source for all things about this decision. I look forward to reading his interesting take on the case in this new article.

The ABA Section of Labor & Employment Law's International Labor & Employment Law Committee Midyear Meeting will be in Istanbul, Turkey from May 9-13, 2010. If you're planning to attend, drop a comment or send me an email. Here's a description of the meeting:

It is against this backdrop that the Committee will be holding a number of panels on cutting edge issues that will be of interest to any management, employee or union lawyer, no matter where they practice. The panels at this meeting will explore hot topics in EU labor law; the UN report on the effect of corporate social responsibility codes on labor practices in Turkey and its implications for multinationals; cross-border labor issues governing the use of migrant workers and the transfer of executives in the Middle East; an evaluation of the labor standards contained in various trade agreements entered into by the U.S. and European countries with countries in the Middle East and elsewhere; an evaluation of the green jobs revolution on environmental, labor and supplier interests; and labor and employment law practice in Turkey and also in other nations (including a linkage to related subjects to be covered in our 2011 planned Berlin meeting). The meeting also will set aside some time to obtain the perspectives of representatives from the media, NGO's and government officials on some of these topics.